Supreme Court can rectify bad legal advice in case of Padilla v. Kentucky.

Tuesday, October 13, 2009

TRUCK DRIVER Jose Padilla was stopped at a weigh station in Kentucky in 2001 when he gave a law enforcement officer permission to examine the contents of his 18-wheeler. Stashed among the registered cargo were some 23 Styrofoam boxes containing 1,000 pounds of marijuana.

Mr. Padilla -- no relation to the man with the same name once known as the "dirty bomber" -- agreed to plead guilty to three charges, including a felony marijuana charge that carried a five- to 10-year sentence. Mr. Padilla, who had been a legal permanent resident of the United States for 40 years and served in the military during the Vietnam War, had asked his court-appointed lawyer whether he could face deportation to his native Honduras because of the conviction. His lawyer told him he didn't have to worry because he had been in this country for so long.

That was not true. Once he found out, Mr. Padilla tried to back out of his guilty plea, arguing that his Sixth Amendment right to adequate assistance of counsel had been violated. The Kentucky Supreme Court ultimately decided that the constitutional right to adequate counsel doesn't extend to matters that fall outside of the criminal case. The court also concluded that defendants may not rescind guilty pleas even if their lawyers provide erroneous advice about such "collateral consequences."

The Supreme Court is scheduled to hear arguments in this case on Tuesday. It should rule in Mr. Padilla's favor.

Guilty pleas can trigger all kinds of collateral consequences, including those touching on family law matters and the right to vote, own a gun or serve on a jury. Criminal defense lawyers should not be expected to provide advice on all of these far-flung issues to meet their legal obligations to provide adequate representation. But advice to a noncitizen defendant on possible deportation -- a government action that can lead to permanent expulsion from the country -- should be required.

The American Bar Association, in a friend-of-the-court brief filed on behalf of Mr. Padilla, notes that ABA rules already urge lawyers to be informed of a client's immigration status because it can affect everything from setting bail to plea negotiations and possible deportation. A defense lawyer, for example, may try to negotiate a guilty plea to a charge that may carry a longer sentence but would not automatically trigger deportation. These ABA exhortations are welcome, but they do not -- and cannot -- establish a defendant's legal right to challenge an action based on counsel's misinformation.

At the very least, the justices should reject Kentucky's conclusion that defendants may not challenge their guilty pleas even when the legal advice was wrong. Mr. Padilla and other noncitizens should be assured they are making these life-altering decisions based on accurate information.

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